Senate Bill No. 647
(By Senators Prezioso and Unger)
____________
[Introduced February 20, 2006; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
____________
A BILL to amend and reenact §61-2-9a of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §62-2-9a, all relating to providing
revisions to the antistalking law in order to increase victim
and public safety; adding clarity toward identification of the
activity of stalking; strengthening criminal penalties;
eliminating the requirement that the stalker and the victim
share some type of personal or other relationship before the
crime may occur; and authorizing the Governor's Committee on
Crime, Delinquency and Corrections to propose legislative
rules designed to aid law enforcement in framing more
effective responses to the crime of stalking.
Be it enacted by the Legislature of West Virginia:
That §61-2-9a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §62-2-9a, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; harassment; penalties; definitions.
(a) Any person who willfully and repeatedly follows and or
harasses a another person with whom he or she has or in the past
has had or with whom he or she seeks to establish a personal or
social relationship, whether or not the intention is reciprocated,
a member of that person's immediate family, his or her current
social companion, his or her professional counselor or attorney, is
guilty of a misdemeanor and, upon conviction thereof, shall be
incarcerated in the county or regional jail for not more than six
months or fined not more than one thousand dollars, or both.
(b) Any person who willfully and repeatedly follows and or
harasses another person and while doing so makes a credible threat
against a the other person with whom he or she has or in the past
has had or with whom he or she seeks to establish a personal or
social relationship, whether or not the intention is reciprocated,
or against a member of that person's immediate family, his or her
current social companion, his or her professional counselor or
attorney with the intent to place or placing him or her in
reasonable apprehension that he or she or a member of his or her
immediate family will suffer death, sexual assault, kidnaping,
bodily injury or battery for his or her safety, or the safety of
another person, is guilty of a misdemeanor felony and, upon
conviction thereof, shall be incarcerated in the county or regional
jail for not more than six months in a correctional facility for
not less than one nor more than three years or fined not more than one thousand dollars, or both.
(c) Any person who repeatedly harasses or repeatedly makes
credible threats against a person with whom he or she has, or in
the past has had or with whom he or she seeks to establish a
personal or social relationship, whether or not the intention is
reciprocated, or against a member of that person's immediate
family, his or her current social companion, his or her
professional counselor or attorney, is guilty of a misdemeanor and,
upon conviction thereof, shall be incarcerated in the county or
regional jail for not more than six months or fined not more than
one thousand dollars, or both.
(d) (c) Notwithstanding any provision of this code to the
contrary, any person who violates the provisions of subsection (a)
or (b) or (c) of this section in violation of an order entered by
a circuit court, magistrate court or family law master court, in
effect and entered pursuant to part 48-5-501, et seq., part
48-5-601, et seq. or part 48-27-403 or part 48-27-501 of this code,
or in violation of a foreign protection order under the provisions
of part 48-28-2(2) or in violation of an order issued under the
provisions of subsection (h) of this section, or while armed with
a deadly weapon as the term "deadly weapon" is defined in section
two, article seven of this chapter, or who is in violation of a
condition of bail, probation or parole which has the express intent
or effect of protecting the personal safety of a particular person
or persons, is guilty of a misdemeanor felony and, upon conviction
thereof, shall be incarcerated in the county jail for not less than ninety days nor more than one year a correctional facility for not
less than one nor more than ten years or fined not less than two
thousand dollars nor more than five ten thousand dollars, or both.
(e) (d) A second or subsequent conviction for a violation of
this section occurring within five years of a prior conviction is
a felony punishable by incarceration in a state correctional
facility for not less than one year nor more than five years or
fined not less than three thousand dollars nor more than ten
thousand dollars, or both.
(f) Notwithstanding any provision of this code to the
contrary, any person against whom a protective order is in effect
pursuant to the provisions of 48-27-403 of this code who has been
served with a copy of said order or 48-27-501 of this code who is
convicted of a violation of the provisions of this section shall be
guilty of a felony and punishable by incarceration in a state
correctional facility for not less than one year nor more than five
years or fined not less than three thousand dollars nor more than
ten thousand dollars, or both.
(g) (e) For the purposes of this section:
(1) "Harasses" means willful conduct directed at a specific
person or persons which would cause a reasonable person mental
injury or emotional distress that seriously alarms, annoys,
torments or terrorizes the person;
(2) "Credible threat" means a threat of bodily injury made
with the apparent ability to carry out the threat and with the
result that a reasonable person would believe that the threat could be carried out;
(3) "Repeatedly" means two or more acts occurring over a
period of time, however short, evidencing a continuity of purpose;
and
(3) (4) "Bodily injury" means substantial physical pain,
illness or any impairment of physical condition; and
(4) "Immediate family" means a spouse, parent, stepparent,
mother-in-law, father-in-law, child, stepchild, sibling, or any
person who regularly resides in the household or within the prior
six months regularly resided in the household.
(h) (f) Nothing in this section shall be construed to prevent
lawful assembly and petition for the redress of grievances,
including, but not limited to: Any labor dispute; demonstration at
the seat of federal, state, county or municipal government;
activities protected by the West Virginia Constitution or the
United States Constitution or any statute of this state or the
United States.
(i) (g) Any person convicted under the provisions of this
section who is granted probation or for whom execution or
imposition of a sentence or incarceration is suspended is to have
as a condition of probation or suspension of sentence that he or
she participate in counseling or medical treatment as directed by
the court.
(j) (h) Upon conviction, the court may issue an order
restraining the defendant from any contact with the victim for a
period not to exceed ten years. The length of any restraining order shall be based upon the seriousness of the violation before
the court, the probability of future violations, and the safety of
the victim or his or her immediate family. The duration of the
restraining order may be longer than five years only in cases when
a longer duration is necessary to protect the safety of the victim
or his or her immediate family.
(k) (i) It is a condition of bond, probation or parole for any
person accused of the offense described in this section that the
person is to have no contact, direct or indirect, verbal or
physical, with the alleged victim.
(l) (j) Nothing in this section may be construed to preclude
a sentencing court from exercising its power to impose home
confinement with electronic monitoring as an alternative sentence.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 2. PRESENTMENTS AND INDICTMENTS.
§62-2-9a. Authorization for legislative rule-making.
The Governor's Committee on Crime, Delinquency and Corrections
shall convene a meeting or meetings of the advisory committee
created under the provisions of section one thousand, one hundred
two, article twenty-seven, chapter forty-eight of this code and in
order to propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code. The rules shall be designed to assist law enforcement in
framing an adequate response to stalking at the state, county and
municipal levels of government, including law-enforcement agencies
and communications and emergency operations centers which dispatch law-enforcement officers: Provided, That the rules and procedures
must be consistent with the priority criteria prescribed by
generally applicable department procedures.
NOTE: The purpose of this bill is to provide for revisions to
the anti-stalking law in order to increase victim and public
safety. To this end the bill adds clarity toward identification of
the activity of stalking while strengthening criminal penalties in
order to enhance the public's perception of the seriousness of the
crime. The bill, additionally, eliminates the requirement that the
stalker and the victim share some type of personal or other
relationship. Finally, the bill authorizes the Governor's
Committee on Crime, Delinquency and Corrections to propose
legislative rules designed to aid law enforcement in framing more
effective responses to the crime of stalking.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.